Weal v Bathurst City Council & Anor [2000] NSWCA 88

Reported Decision : 111 LGERA 181

New South Wales Court of Appeal

CITATION : Weal v Bathurst City Council & Anor [2000] NSWCA 88 FILE NUMBER(S) : CA 40509/99 HEARING DATE(S) : 6 April 2000 JUDGMENT DATE : 24 November 2000

William James Weal - Appellant PARTIES : Bathurst City Council - First Respondent Twentieth Super Pace Nominees Pty Ltd (t/as Specialized Container Transport) JUDGMENT OF : Mason P at 1; Priestley JA at 32; Giles JA at 36

LOWER COURT JURISDICTION : Land & Environment Court LOWER COURT LEC 40179/98 FILE NUMBER(S) : LOWER COURT Bignold J JUDICIAL OFFICER :

T S Hale SC & E A White - Appellant COUNSEL : W R Davison SC - First Respondent D R Parry - Second Respondent Writer Ryan Boesen, Toukley - Appellant SOLICITORS : Housten Dearn O'Connor, Burwood - First Respondent McIntosh McPhillamy & Co, Bathurst - Second Respondent CATCHWORDS : TOWN PLANNING - development consent - whether council failed properly to take into consideration the noise impact of the development - deferred commencement condition that consent not to operate until "relevant approvals" by EPA had been obtained - despite deferred commencement condition, council still obliged to consider noise impact - (by majority) on facts, should be inferred that it did not properly do so. OBLIGATION TO CONSIDER - Remath Investments No 6 Pty Ltd v Botany Bay Council (No 2) (Talbot J, 11 December 1996, unreported); Cameron v Nambucca Shire Council (1997) 95 LGERA 268 preferred to Canyonleigh Environment Protection Society Inc v Wingecarribee Shire Council (1997) 95 LGERA 294. CASES CITED: WHETHER PROPER CONSIDERATION - Parramatta City Council v Hale (1982) 47 LGRA 319; King v Great Lakes Shire Council (1986) 58 LGRA 336; Currey v Sutherland Shire Council (1998) 100 LGERA 365; Jungar Holdings Pty Ltd v Eurobodalla Shire Council (1989) 70 LGRA 79; Leichhardt Municipal Council v The Minister (1992) 77 LGRA 64, applied. DECISION : (By majority) (1) Dismiss the first respondent's application to adduce fresh evidence on the appeal. (2) Appeal allowed. (3) Set aside the orders made by Bignold J dismissing the application and as to costs. (4) Declare that the development consent 980154 granted to the second respondent by the first respondent on or about 18 March 1998 for the development of an intermodal transport terminal on the property lots 5, 6 and 7 DP 581954 is void and of no force and effect. (5) Order the respondents to pay the appellant's costs of the proceedings before Bignold J and of the appeal.